WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
L & M Swiss Watch Limited v. seodaekyu
Case No. D2017-1214
1. The Parties
The Complainant is L & M Swiss Watch Limited of Hong Kong, China, represented by Fox Rothschild LLP, United States of America ("United States").
The Respondent is seodaekyu, Guro-dong, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <luminoxkorea.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 22, 2017. On June 23, 2017, the Center transmitted to the Registrar a request for registrar verification in connection with the disputed domain name. On June 26, 2017, the Registrar transmitted to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on June 28, 2017. In accordance with the Rules, paragraph 5, the due date for the Response was July 18, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 19, 2017.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on July 25, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant markets and sells a brand of watches, using the mark, LUMINOX, or LUMI NOX plus a design. The Complainant has received multiple registrations of the LUMINOX or LUMI NOX mark, in the United States (on December 30, 1997, and March 14, 2000), and the Republic of Korea (on January 28, 2004).
The Respondent registered the disputed domain name <luminoxkorea.com> on February 11, 2014.
5. Parties' Contentions
The Complainant contends principally that: (i) the disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. In addition, the Complaint states:
"[B]oth through its extensive advertising networks and the high quality of its goods, the Complainant has developed a strong brand that is well-known in the watch and timepiece field."
"Respondent has intentionally attempted to confuse the Complainant's customers and business contacts by drawing them to an unauthorized website."
"The Complainant has not given Respondent the right to use the domain name. Respondent is not a sales representative or official dealer in the Complainant's goods. The Complainant has not licensed any use of its mark to Respondent. The Complainant never granted Respondent permission to use the LUMINOX mark in any manner, nor did the Complainant ever consent to Respondent's use of the disputed domain name."
The Respondent did not reply to the Complainant's contentions. Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. Under paragraph 14(b), the Panel may draw appropriate inferences from the Respondent's default.
6. Discussion and Findings
In order to prevail, the Complainant must satisfy each of the three elements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Panel determines that the disputed domain name <luminoxkorea.com> is identical or confusingly similar to LUMINOX, a mark in which the Complainant has rights. The disputed domain name incorporates the Complainant's mark in full and merely adds "korea" plus the Top-Level Domain, ".com". The addition of a geographical term does not defeat confusing similarity. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.8.
The first element is demonstrated.
B. Rights or Legitimate Interests
The Complainant urges that it has no association with the Respondent, and did not consent to the Respondent's use of the Complainant's mark. The Complainant has met its initial burden of making a prima facie showing. The burden shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is also demonstrated.
C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must show that the disputed domain name "has been registered and is being used in bad faith." Paragraph 4(b) provides a non-exhaustive list of circumstances that are "evidence of the registration and use of a domain name in bad faith".
The disputed domain name resolves to a website with content in Korean text stating that consumers may purchase watches from another source, and providing a link. The Korean transliteration of "LUMINOX" and "LUMINOX Korea" appears in the text. Internet users who resort to the link are taken to another website whose content (also in Korean text) includes displays of various brands of watches, including those labeled "LUMINOX".
The Panel concludes that there is sufficient evidence to support a finding of bad faith. In brief, the Respondent has "intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] web site … by creating a likelihood of confusion with the [C]omplainant's mark," as set forth in paragraph 4(b)(iv) of the Policy.
The third element is established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <luminoxkorea.com> be transferred to the Complainant.
Date: August 2, 2017